Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA ***** Criminal Appeal (DB) No.470 of 1990 Against the judgment of conviction and order of sentence dated 21st September, 1990 and 22nd September, 1990 respectively passed by Shri learned 4th Additional Damodar Prasad, Sessions Judge, Motihari in Sessions Trial No. 5/5 of 1987. the ***** =========================================================== 1. Chandra Rai @ Ram Chandra Rai, son of Sri Ramdayal Rai 2. Jagarnath Rai, son of Sri Ramdayal Rai Both resident of Village Saraiya, Police Station – Kotwa, District – East Champaran, Motihari. .... .... Appellants The State of Bihar Versus .... .... Respondent =========================================================== Appearance : For the Appellants For the Respondent =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and : Mr. Vivekanand Singh, Advocate. : Mr. Ajay Mishra, APP. HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 02-07-2013 ***** Two appellants Chandra Rai @ Ram Chandra Rai and his brother Jagarnath Rai were put on trial along with others and were convicted under Section 302 read with Section 34 of the IPC and sentenced to undergo R.I. for life vide judgment of conviction dated 21.09.1990 and order of sentence dated 22.09.1990 passed by the learned 4th Additional Sessions Judge, Motihari in Sessions Trial No. 5/5 of 1987. Two persons Banti Rai and Sanehi Rai have died during pendency of the appeal. Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 2 2. The night of 16/17.02.1986 became nightmarish for Ganga Rai P.W. 8, wherein he lost his son Shiv Pujan Rai by the cruel hands. The occurrence was reported when the police came to the village Bairia on getting information of an occurrence given by the informant. Fardbeyan (Ext. 1) of P.W. 8 Ganga Rai recorded by S.I. Asharfi Mahto P.W. 9, is the basis of the prosecution case which has come up to this Court through an appeal. The fardbeyan recorded at 10.00 a.m. on 17.02.1986, divulged that Banti Rai (accused-died) has taken Rs. 1200/- as loan from the informant’s son Shiv Pujan Rai (the deceased). All the pursuations have failed to get the desired amount. Banti Rai had promised to return the amount. On the previous Sunday at 5.00 p.m., Banti Rai came on the Darwaja of the informant and called the informant’s son Shiv Pujan Rai (the deceased) for taking fried grain (Bhuja) and also promised to return the amount of loan after settlement. The informant’s villager Lakhraj Rai P.W. 1 accompanied them. At about 07.30 p.m., Bira Mahra P.W. 3, Mahabir Mahra (not examined) and others of village Sareya came upon the Darwaja of the informant and informed that Banti Rai, Sanehi Rai, Bilas Rai, Harihar Rai, Chandra Rai @ Ram Chandra Rai and Jagarnath Rai were thrashing and badly assaulting Shiv Pujan Rai and they have
Facts
Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 3 tied him with Dheki. After receiving the information the informant along with villagers rushed to Sareya village. Villagers Rijhan Mahra, Babulal Mahra and Aklu Ram P.W. 5 accompanied the informant. As soon as the informant went to the house of Banti Rai then he saw his son unconscious and tied with Dheki and being encircled by the accused persons Banti Rai, Sanehi Rai, Bilas Rai, Harihar Rai, Chandra Rai @ Ram Chandra Rai and Jagarnath Rai, who were armed with traditional weapons like Lathi, Bhala and Knife. The informant requested them to spare his son and also complained them as to why they were behaving like that after calling Shiv Pujan Rai with promise to return money, but the informant was threatened to be falsely implicated. The informant returned and went to Chaukidar but he did not meet. The informant could not go to the police station rather he went to the Mukhiya, where Mukhiya told that he would look into the matter in the next morning. In the next morning, the informant came to know that his son Shiv Pujan Rai has been killed by the accused persons. The informant rushed at about 08.00 a.m. and he found his son dead. The informant was going to the police station to inform about the occurrence but in the meanwhile police came and recorded the fardbeyan on the Darwaja of accused Banti Rai. Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 4 The fardbeyan resulted into Kotwa P.S. Case No. 18 of 1986 under Section 302/34 of the IPC against six persons. The case was registered against six persons through a formal FIR (Ext. 2). The investigating officer prepared the inquest report (Ext. 3) and the investigation commenced. The post-mortem report (Ext. 4) was procured. Statement of the witnesses was recorded and the place of occurrence was inspected. The case was found to be true during investigation and so charge sheet was submitted. Cognizance was taken and after supply of police papers and completion of other paraphernalia the case was committed to the court of Sessions where charges under Section 302/34 of the IPC was explained against Banti Rai, Sanehi Rai, Bilas Rai, Harihar Rai, Chandra Rai @ Ram Chandra Rai and Jagarnath Rai. Two persons Bilas Rai and Harihar Rai have died during trial so four persons have faced the trial. They were held guilty and against the judgment of conviction all the four have preferred the appeal. Two persons Banti Rai and Sanehi Rai have died during pendency of the appeal. Therefore, the appeal will continue on behalf of appellants Chandra Rai @ Ram Chandra Rai and Jagarnath Rai. 3. The defence of the appellants was apparently of false implication on account of hostility from before. Their Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 5 further defence was that Shiv Pujan Rai was a hardened criminal and accused of a number of cases. He was accused in case under Section 395 of the IPC in which he was duly identified at test identification parade. Their further defence was that the case lodged on behalf of the accused was earlier in time and the I.O. came into connivance with the prosecution party and framed the accused in apparently false case. Their further defence was that the deceased Shiv Pujan Rai entered into the house of accused for the purpose of committing theft and also for outraging the modesty but he was overpowered and thrashed by villagers but the accused persons who were framed in the present case were not involved and were later on named. 4. To support its case, the prosecution has examined altogether ten witnesses; they are P.W. 1 Lakhraj Rai, P.W. 2 Manka Rai, P.W. 3 Bira Mahra, P.W. 4 Rojhan Mahra, P.W. 5 Aklu Ram, P.W. 6 Govind Deo Singh, P.W. 7 Bhabhikhan Singh, P.W. 8 Ganga Rai, P.W. 9 Asharfi Mahto and P.W. 10 Dr. Bhola Nath Khan. P.Ws. 5 and 7 have been tendered by the prosecution. P.W. 8 is the father of the deceased as well as informant of the present case. P.W. 9 is the I.O. and P.W. 10 has conducted the post-mortem report upon the dead body of Shiv Pujan Rai. Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 6 5. The defence has examined D.W. 1 Raghunath Singh, D.W. 2 Gaya Singh, D.W. 3 Thakur Prasad, D.W. 4 Narsingh Rai and D.W. 5 Jhapas Rai and brought on record the FIR of Kotwa P.S. Case No. 17/1986 (Ext. A), Test Identification Parade (Ext. B) and fardbeyan as (Ext. C). 6. The trial court after considering the evidences adduced on behalf of the accused/appellant, after perusal of the exhibits and hearing the learned counsels, came to the opinion that the prosecution had succeeded in proving the charges against the accused persons beyond shadow of all reasonable doubts. Now, this Court has to see whether the judgment of the learned court below is correct or not. 7. Before discussing other evidence it would be appropriate to see the evidence of the doctor P.W. 10 who held the autopsy upon the dead body of Shiv Pujan Rai. The post- mortem was conducted on 18.02.1986 at 02.00 p.m. and the following anti-mortem injuries were found on the dead body : (i). Lacerated wound 2.1/2”x1/2”x bone deep over the occipital region of head. (ii). Bruise 2”x 1/2" over left forehead. (iii). Multiple bruises with swellings over left hand and fingers. Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 7 (iv). Sharp cut injury 1.1/2”x1/2” x skin deep over the left forehead. (v). Redness, bruises and swelling on the right upper heart. (vi). Sharp cut 2.1/2” x 1/2" x skin muscle deep over the right lower leg lateral aspect. (vii). Multiple bruises 2”x 1/2" over right leg and ankle. (viii). Multiple bruises with swelling and blacken of skin over the left scalp muscle and left foot. (ix). Bruise 2.1/2” x 1/2" with swelling over the right thigh. (x). Bruises multiple 2.1/2”x 1/2" over the back right side. (xi). Circular bruise with 1/2" diameter over front of the middle of right chest. The death was due to shock and haemorrhage caused by the above mentioned injuries. The doctor has not mentioned about any food being present in the stomach of the deceased. A plane reading of the evidence of P.W. 10 goes to show that Shiv Pujan Rai had a homicidal death. Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 8 8. Once it is proved by the prosecution that the death was homicidal then the onus shifted upon the prosecution to establish that it was a conduct of the accused and the accused alone who caused death of the victim. 9. P.W. 8 has lost his son. While deposing he has stated that his son Shiv Pujan Rai was called at 05.00 p.m., by Banti Rai with the assurance of settlement of loan. Shiv Pujan Rai accompanied Banti Rai. Lakhraj Rai was also associated with them. In the same night at about 08.00 p.m., Bira Mahra P.W. 3, Mahabir Mahra and some other persons came to the house of the informant that they told that Banti Rai, Sanehi Rai, Bilas Rai, Harihar Rai, Chandra Rai @ Ram Chandra Rai and Jagarnath Rai were assaulting Shiv Pujan Rai and they tied him in a Dheki (wooden plank being utilized for thrashing the grain). Villagers Gobind Deo Singh P.W. 6, Bhabhikhan Singh P.W. 7, Babu Lal (not examined), Mahabir Mahra (not examined), Aklu Ram P.W. 5, Manka Ram P.W. 2 and others joined the informant and went to the house of Banti Rai where Shiv Pujan Rai was found tied in the Dheki. Shiv Pujan Rai was already assaulted by all the accused persons who were present there. The informant requested the accused persons to spare Shiv Pujan Rai who have refused. Further persuasion of the Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 9 informant resulted in rebut. They further threatened to burn the house for implicating the informant. The informant returned from that place and went to Chowkidar but he did not meet the informant. The informant then went to Mukhiya and narrated the entire occurrence. The Mukhiya had assured that on the next day he would go to the house. In the next morning, the informant knew that his son was killed. The informant went to the house of accused and found his son dead. The accused persons were not there. The informant was going to the police station but the officer-in-charge came and the informant narrated his version to the police which was noted down and was witnessed by Ramji Rai Mukhiya (not examined) and Udit Rai (not examined). The informant’s son was lending loan and he had given Rs. 1200/- to Banti Rai and its demand for recovery was the reason of the occurrence. The informant has stated that the loan being realized by his son was @ 5% each month. He has stated in para-6, that police station is situated at a distance of 2 Kos (4 miles) from his house. He has stated that Banti Rai has gone to the police station on the next day. 10. A critical analysis of the informant’s evidence is that he is not a witness of actual assault rather he is a witness of seeing his and accused persons present with traditional Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 10 weapons and at that time they were surrounding Shiv Pujan Rai. That is the evidence of the informant. The most important witness of the case examined by the prosecution is P.W. 3, who witnessed the occurrence. P.W. 3 in his deposition has claimed that he has seen the accused persons assaulting Shiv Pujan Rai and has also seen Shiv Pujan Rai tied with Dheki. After seeing this occurrence P.W. 3 rushed to the informant to say about the occurrence. Thus this witness has claimed to be the witness of the occurrence. Nobody had tried to intervene the assault. He has also claimed that Shiv Pujan Rai was assaulted by the accused persons in the wheat field also and after assaulting there he was brought to the house where he was tied with Dheki. The wheat field was situated at a distance of 3 Laggas from the house of the accused. He has divulged that he has not stated that the accused persons branding Shiv Pujan Rai as thief and they were assaulting claiming that Shiv Pujan Rai was a thief. 11. Another material witness of the case is P.W. 1 who has stated that he has accompanied Shiv Pujan Rai and Banti Rai and in the way all the three have taken toddy. He has detailed the manner wherein he has stated that after hearing that Shiv Pujan Rai has been assaulted, he has gone to the house of accused Banti Rai. The accused persons were having Garasa, Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 11 Chaku, etc. This witness has requested to the accused persons to spare Shiv Pujan Rai but that was not followed. He has denied that any case of theft and outraging the modesty has been lodged on the fardbeyan of the accused persons. P.W. 2 has heard halla towards the house of Banti Rai and thereafter rushed there and witnessed thrashing of Shiv Pujan Rai by the accused persons. Similarly Rijhan Mahra has claimed that after hearing cry he has gone and seen the accused persons thrashing Shiv Pujan Rai. Govind Deo Singh P.W. 6, has seen Shiv Pujan Rai tied with Dheki and when this witness went then noticed that Banti Rai, Sanehi Rai, Bilas Rai, Harihar Rai, Chandra Rai @ Ram Chandra Rai and Jagarnath Rai were there. The witnesses are consistent so far as the evidence with regard to their seeing Shiv Pujan Rai being tied with Dheki is concerned. Witnesses are also on the point that they have seen that the deceased Shiv Pujan Rai being thrashed in the wheat field. The I.O. P.W. 9 had complained that Shiv Pujan Rai had intruded in the house of the accused for the purpose of committing theft and he was caught by the villagers. This fardbeyan has resulted into Kotwa P.S. Case No. 17 of 1986, and in connection with investigation of that case he went to the village where he found that Shiv Pujan Rai was killed and this information resulted into Kotwa P.S. Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 12 Case No. 18 of 1986. After recording the statement, the I.O. went to the place of occurrence as detailed to him but he did not find any tangible mark which could link the offence with the accused persons. He did not find any blood or any important mark. He has stated that he had gone to the village for investigation of a case lodged by Banti Rai. The I.O. has not found any rope at the place of occurrence. The surprising aspect of the case appears to be non-presence of any blood stained mark even on the cloth which the deceased was wearing. He has stated that P.W. 2 has informed that after hearing the sound that thieves have come he rushed to the place of occurrence. Similar was the statement before the I.O. by Mahabir Mahra, Aklu Ram P.W. 5, Govind Deo Singh P.W. 6 and Bira Mahra P.W. 3. 12. Learned Counsel for the appellant has submitted that prosecution has to prove its case beyond shadow of all reasonable doubts. The consistent prosecution evidence was that Shiv Pujan Rai was assaulted and thrashed by either in the house of the accused persons or in the wheat field which was situated just a distance of three laggas. The I.O. has rushed the place of occurrence in the next morning but he has not found any distinguishable mark which could conclusively proof that the offence was committed at the place as indicated by the Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 13 informant. Even the clothes of the deceased were intact as it had no blood stain. The prosecution evidence is consistent that due to continued thrashing by all the accused persons the death has occurred. 13. If the manner of assault detailed by the witnesses is conceived, then the only outcome would be that the clothes should be badly torned. There is no evidence that the victim after assault was given a fresh cloth to wear, meaning thereby that there was only one version that Shiv Pujan Rai was badly thrashed and no cloth was put upon him. Therefore, the only version which has been brought by the prosecution was that Shiv Pujan Rai was in the same cloth which he was wearing at the time of assault. The prosecution had onus to prove as to how the clothes remained intact. It is not for the defence to say anything rather it is for the prosecution to show everything. The ocular version with regard to manner of assault gets contradicted if the version of the I.O. regarding the clothes being owned by the deceased is taken into account. Thus it is apparent that this vital gap has remained thoroughly unexplained. This non-explanation gets more compounded when it is seen with non-finding of any mark of violations, either at the wheat field or in the house of the accused and only Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 14 these two places have been claimed to be the places where assaults were made. Non-finding of any trampling mark or mark of blood etc. makes the prosecution version slightly doubtful and it can be prosecuted when the prosecution comes true with all the information which it should have given. 14. It has come that the informant first went to the Chowkidar and thereafter to Mukhiya. Chowkidar was no doubt not there and his evidence was not necessary but the first version was given by the informant to Mukhiya. Non- examination of Mukhiya is another circumstance which creates doubt. The Mukhiya would have been in a position to say as to what was found by the informant and it was the Mukhiya who undoubtedly was the first person who was told that Shiv Pujan Rai has been tied with Dheki for which he has been assaulted. Meaning thereby he was most important witness of the case and there is no explanation as to why the Mukhiya was withheld. 15. The occurrence is of about 07.30 p.m., onwards in the night. The fardbeyan was recorded at 10.00 a.m. in the village itself. When the distance of police station is hardly four miles then this delay becomes important. The informant has seen that his son being thrashed and badly being assaulted by the accused persons. A father would not keep mum when he Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 15 sees that his son is being brutalized. Either the father should have retaliated at once or at least he should have taken recourse in indulging the villagers to go to police station. It has come in evidence that in the night he slept. This goes against human behaviour and it creates grave doubt that the informant has come up with all the cards which he had. 16. Learned APP though has supported the judgment and has submitted that the circumstance which has been brought by the prosecution were not conclusive. 17. Non-finding of any blood either on the place of occurrence or in the cloth of the deceased, non-finding of any dragging mark or trampling mark by the I.O. and non-taking steps by the informant either to save his son or going to the police station are the considerations which have to be taken into account. Non-examination of Mukhiya is another circumstance. It has also been brought on the record that the deceased prior to the occurrence was involved in other criminal cases but that is not relevant in itself. The circumstances brought on the record makes the case doubtful so far as it relates to either proving the place of occurrence or non-explanation of non-reporting the matter in the night itself to the police station. If a doubt is
Legal Reasoning
created then it is settled law that the benefit of doubt goes to the Patna High Court CR. APP (DB) No.470 of 1990 dt.02-07-2013 16 accused. 18. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are already on bail hence they are acquitted of the charges and discharged from the liabilities of their respective bail bonds. (Shyam Kishore Sharma, J.) (Amaresh Kumar Lal, J.) KKSINHA/- N.A.F.R.